This is a few days old, but on 8 January 2013, the Supreme Court held in Ryan v.Valencia Gonzales that a federal habeas petitioner is not entitled to stay of his petition when he is found incompetent and unable to communicate with his counsel. Both the Ninth and Sixth Circuits had found statutory rights (based on different statutory sections) to be competent and to be able to assist their counsel on their appeals, even where the appeals were entirely record-based. The Supreme Court disagreed, noting that the right to be competent during trial flows from Due Process under the Fifth Amendment and not the right to counsel under the Sixth Amendment. Therefore, the right to federally funded counsel in capital cases for federal habeas petitioners does not imply a right to competence and the Supreme Court did not find such a right in the habeas statutes.

No. 13-8006/AF. Patrick CARTER, Petitioner v. The United States, United States Air Force Court of Criminal Appeals and Commander, United States Naval Consolidated Brig, Miramar, California, Respondents. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus or, in the alternative, writ of mandamus, it is ordered that on or before October 22, 2012, Respondents show cause why the requested relief should not be granted on the following issue:

Whether petitioner is entitled to extraordinary relief where his case has been pending before the Air Force Court of Criminal Appeals for more than 24 months and the Air Force Court has denied multiple motions for expedited decision.

You will remember Padilla v. Kentucky, and you will remember United States v. Denedo, 66 M.J. 114 (C.A.A.F. 2008) – now you may have to remember Chaidez. Along with United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006), the bottom line issue is what must a defense counsel tell an accused who intends to plea guilty at court-martial about collateral effects of the conviction.

To refresh. In United States v. Denedo, (and forgive me this one time), the LEXIS case summary is:

Appellant servicemember filed a petition for extraordinary relief with the U.S. Navy-Marine Corps Court of Criminal Appeals (CCA), requesting collateral review of his court-martial for alleged ineffective assistance of counsel, and issuance of a writ of error coram nobis under the All Writs Act, 28 U.S.C.S. § 1651(a). The CCA denied the government’s motion to dismiss. It also denied the servicemember’s petition in summary fashion. He appealed.

The Government contended that the CCA erred by not dismissing the petition on jurisdictional grounds, while the servicemember contended that it erred by not granting relief. He challenged his court-martial conviction, asserting that his plea was not knowing or voluntary. He contended that he expressly requested guidance of counsel on the immigration impact of his plea, that the advice provided by his attorney was defective, and that he relied upon ineffective assistance of counsel to his detriment in pleading guilty. The question in the case was whether a court-martial conviction, imposed on a servicemember while in military status, was subject to collateral review under the All Writs Act by the court that approved the conviction. The court determined that the CCA did not err by reviewing the servicemember’s petition under the All Writs Act. It next considered next whether the petition met the criteria for issuance of a writ of error coram nobis. The writ petition met the threshold criteria for coram nobis review. However, until the government was required to respond on the merits, it would have been inappropriate for the court to render a judgment on the merits of his petition.

The court remanded the petition to the CCA for further proceedings, where the government would have the opportunity to obtain affidavits from defense counsel and submit such other matter as the CCA deemed pertinent. The CCA was then, inter alia, to determine whether the merits of the petition could be resolved on the basis of the written submissions, or whether a fact finding hearing was required under DuBay.

The Supremes granted a writ, and in a 5-4 decision, affirmed the CAAF. United States v. Denedo, 555 U.S. 1041 (2009). Upon remand the Navy-Marine Corps Court of Criminal Appeals denied Denedo’s petition in an unpublished decision, United States v. Denedo, NMCCA 9900680, 2010 CCA LEXIS 27 (N-M Ct. Crim. App. March 18, 2010). Denedo’s appellate counsel filed a petition with CAAF, but it was dismissed as untimely. A motion for reconsideration of the denial was denied in a 3-2 decision, with Efron and Baker dissenting, United States v. Denedo, Misc. No. 10-8016/NA, 2010 CAAF LEXIS 795 (C.A.A.F. September 8, 2010).

At 0955 today on SCOTUSBlog live blog from the Supremes we see:

Tom: The most likely grant today (by far) is the Stanford Clinic’s petition in the Chaidez case on the retroactivity of the S. Ct.’s holding in Padilla that effective assistance of counsel includes giving correct advice about the immigration consequences of a plea agreement. It is very likely because the Solicitor General has agreed cert should be granted.

And of course Chaidez is listed as a grant in the orders list. Here is the link to Chaidez v. United States at SCOTUSBlog.

Issue: Whether the Court’s decision in Padilla v. Kentucky, holding that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies to persons whose convictions became final before its announcement.

The Supreme Court on Monday agreed to settle a dispute among lower courts on whether to give more immigrants the benefit of a ruling that requires their lawyers to advise them more clearly on what can happen if they plead guilty to a crime. At issue in the new case of Chaidez v. United States (11-820) is the potential retroactivity of the Court’s 2010 ruling in Padilla v. Kentucky. This was the only new case granted on Monday; it will be heard and decided in the new Term starting October 1.

In the Padilla decision, the Court ruled that the Sixth Amendment right to counsel includes a right for a non-citizen living in the U.S. to be advised by a lawyer of the consequences under immigration law of pleading guilty to a crime that could lead to deportation. The majority noted that, under dramatic changes recently in immigration law, deportation is virtually automatic after one is convicted of an ”aggravated felony.”

Certainly we may get more guidance about the scope of an pre-plea advice. That is still troublesome with Miller and other collateral effects issues. See e.g., United States v. Blume, ACM 37385, 2012 CCA LEXIS 98 (A. F. Ct. Crim. App. March 23, 2012), United States v. Page, ACM 37612, 2011 CCA LEXIS 294 (A.F. Ct. Crim. App. August 25, 2011), United States v. Rose, 67 M.J. 630 (A.F. Ct. Crim. App. 2009).

Query, would a favorable retroactivity ruling in Chaidez also benefit former appellant’s who had a Miller issue, or is Chaidez limited to civilian cases of immigrants? If there were a bunch of Denedo-like cases out there I’d of expected them to show up by now.

Military death row inmate Ronald Gray’s counsel today filed this status report with the United States District Court for the District of Kansas, advising the court of CAAF’s denial of Gray’s writ appeal.

In this response to the respondents’ status report in the pending habeas litigation in Gray v. Belcher, 5:08-cv-03289-RDR, military death row inmate PVT Ronald Gray’s counsel today indicated that they will file a writ appeal with CAAF challenging ACCA’s denial of coram nobis relief.

The Fourth Circuit just issued this published opinion denying habeas relief on military death row inmate Timothy Hennis’s case. The court ruled that the distict court correctly applyed Councilman absention to dismiss Hennis’s habeas petition without prejudice. See Schlesinger v. Councilman, 420 U.S. 738 (1975). Former Navy military judge, and now Circuit Judge, Wynn wrote for a unanimous panel that also included Judges King and Gregory.

Judge Wynn’s opinion notes the general rule that a court-martial doesn’t have jurisdiction “to try an enlisted man for an offense committed in a prior enlistment from which he has an honorable discharge, regardless of the fact that he has subsequently reenlisted in [a military] service and was serving under such reenlistment at the time the jurisdiction of the court was asserted.” Hirshberg v. Cooke, 336 U.S. 210 (1949). The opinion also notes the Clardy Exception, which provides that “where a servicemember is discharged prior to the expiration of his [ETS] for the specific purpose of immediate reenlistment, . . . he can be tried for offenses committed in the earlier enlistment.” United States v. Clardy, 13 M.J. 308, 310 (C.M.A. 1982). And the opinion observed that “there was (and remains) an open factual dispute between the parties regarding the date on which Hennis’s previous term of enlistment was to end,” which could have the effect of placing the offenses within or outside the Clardy Exception.

The Fourth Circuit upheld the district court’s decision not to reach the merits of the Clardy Exception’s applicability due to the Councilman absention principles. 420 U.S. 738.

The Fourth Circuit emphasized that unless the Supremes resolves the matter upon a cert petition seeking review of CAAF’s decision in the case, Hennis will be able to seek habeas relief on his jurisdictional claim following the completion of direct appeal within the military justice system.

Finally, the Fourth Circuit remanded the case to the United States District Court for the Eastern District of North Carolina for correction of erroneous language in the district court’s judgment. (The error was that the judgment purported to grant the respondents’ summary judgment motion on the merits when the judge’s decision dismissed the habeas petition without prejudice and without reaching its merits.)

The United States Court of Appeals for the Fourth Circuit will hear oral argument on military death row inmate Retired Master Sergeant Timothy Hennis’s appeal of his habeas denial on 26 October. Hennis v. Hemlick, No. 10-6400.

We’ve previously noted that the Fourth Circuit plans to hear oral argument in an appeal of the denial of habeas relief on jurisdictional grounds arising from the Army capital case of United States v. Hennis. The oral argument had previously been expected to occur during the last week of September. Yesterday, the Fourth Circuit moved the likely oral argument date in Hennis v. Hemlick, No. 10-6400, to the 25-28 October 2011 argument window.

The Fourth Circuit today issued this order in the habeas case of Hennis v. Hemlick, No. 10-6400. The appeal challenges the military’s jurisdiction to court-martial military death row’s newest resident, retired Master Sergeant Timothy Hennis. The argument is tentative,ly calendared for argument during the 20 September – 23 September argument session. Maybe I’ll be taking a field trip to Richmond in September.

An alert reader called our attention to the fact that military death row inmate Timothy Hennis’s counsel filed his reply brief in Hennis’s appeal of denial of habeas relief. The case is pending before the 4th Circuit. We’ve posted the reply brief here.

We’ve previously noted that military death row inmate Ronald Gray’s counsel have asked the U.S. District Court for the District of Kansas to put his habeas case on hold while his counsel litigate a petition for writ of error coram nobis at ACCA. On Monday, Gray’s counsel filed this reply to the Respondent’s opposition to the defense motion to put the federal habeas proceedings on hold while awaiting ACCA’s ruling.

A lot happened while I was gone, including the filing of this defense motion to stay federal habeas proceedings in Gray v. Belcher, No. 02-CR-116, pending ACCA’s resolution of Gray’s recently filed petition for writ of error coram nobis, available in two parts here and here. And here’s a link to the Respondent’s opposition to the motion to stay proceedings.

This evening the Appellees — essentially the United States Army — filed their brief in Hennis v. Hemlick, an appeal of the denial of habeas relief in the capital court-martial of United States v. Hennis. The appeal is pending in the Fourth Circuit. We’ve posted the Appellees’ brief here. The filing of that brief comes two days before a post-trial Article 39(a) is scheduled in the court-martial case at the USDB.

Here’s a link to the brief filed on behalf of military death row inmate Timothy Hennis challenging the United States District Court for the Eastern District of North Carolina’s denial of habeas relief.

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